Orissa High Court
Syed Mahtab Jamal & Others vs State Of Orissa & Another ... Opposite ... on 13 May, 2024
Author: G. Satapathy
Bench: D. Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos.2222 of 2018 & 32223 of 2020
(An application under Articles 226 & 227 of the
Constitution of India)
Syed Mahtab Jamal & others ... Petitioners
(In W.P.(C) No.2222 of 2018)
-versus-
State of Orissa & another ... Opposite Parties
AND
Avinash Rout & others ... Petitioners
(In W.P.(C) No.32223 of 2020)
-versus-
State of Orissa & another ... Opposite Parties
For Petitioners : Mr. S.B. Mohanty, Advocate
(In W.P.(C) No.2222 of 2018)
Mr. M. Kanungo, Senior
Advocate along with Mr. S.R.
Mohanty, Advocate
(In W.P.(C) No.32223 of 2020)
For Opposite Parties : Mr.G.N.Rout, ASC
CORAM:
HON'BLE MR. JUSTICE D. DASH
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :13.02.2024
DATE OF JUDGMENT:13.05.2024
G. Satapathy, J.
1. Not only the issues in these two writ petitions are identical, but also the prayer made W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 1 of 28 therein in essence are same and thereby, both the writ petitions are heard together and disposed of by this common judgment with the consent of the learned counsel for the parties.
2. The writ petitioners in both the writ petitions are working as Senior Grade Typist or Junior Grade Typist/Data Entry Operator in the High Court of Orissa and they have sought for a direction to the Opposite Parties to revise their pay at par with their counterparts in the State Secretariat with effect from their initial date of appointment by relying upon the judgment of this Court passed on 21.11.2013 in W.P.(C) No.6464 of 2013. In addition to this prayer, the writ petitioners in W.P.(C) No.2222 of 2018 have also prayed to quash the order dated 20.09.2017 issued/passed by Special Officer (Special Cell), High Court of Orissa.
2.1 The petitioners were initially appointed as Junior Grade Typist/Data Entry Operator in different phases in the year 2004, 2012 and 2015, but at the time of initial appointment of Data Entry Operator, W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 2 of 28 the Orissa High Court (Appointment of Staff) Rules, 1963 (In short the "Rules, 1963") was in force, which was subsequently amended in the year 2012 and 2015. Consequent upon the amendment of Rules vide High Court of Orissa (Appointment of Staff) Rules, 2012 (In short the "Rules, 2012"), the minimum qualification for the post of Junior Grade Typist/Data Entry Operator was prescribed as Graduation, but before the amendment, it was +2 with computer knowledge. While the Rules, 2012 was in existence, a new Rule governing the service condition of staff of High Court came into force called as High Court of Orissa (Appointment of Staff and Conditions of Service) Rules, 2015 (In short "the Rules, 2015") wherein 16 categories of posts were considered as "Group-C" category, out of which the post of Jr. Gr. Typist/DEO was placed at category no. 58 and the promotional avenue to Jr. Grade Typist/Data Entry Operator was provided to the post of Senior Typist which was placed at serial no. 46 in the category. While the matter stood thus, 4th pay revision and W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 3 of 28 thereafter, 5th and 6th pay revision were accepted and implemented by the Government of Odisha and in terms of 4th pay commission's recommendation, 50% post of Junior Grade Typist had been upgraded to Senior Grade Typist and, accordingly, the post of Head Typist was directed to be created. Further, the Chapter 55 of the 5th Central Pay Commission (CPC) Recommendation deals with common categories of posts and in Paragraph 55.152 therein, the language Typists are sub-divided into four categories, such as Typists in (i) English, (ii) Hindi, (iii) Indian languages other than Hindi and (iv) foreign languages, but Typists in first two categories form part of a general clerical cadre of an organization in the matter of pay scales and promotional avenues. Accordingly, the State Government implemented the entry level and promotional post of Typists at par with the Clerks in respective organization in the scale of Rs.950-1500 in Orissa Revised Scales of Pay Rules, 1998 (ORSP, 1998). Accordingly, it is claimed by the petitioners that the Typists have a legitimate right to claim scale W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 4 of 28 of pay similar to the pay enjoyed by Ministerial Cadre.
2.2 In Orissa High Court, there is no clerical cadre available in the scale of pay of Rs.950-1500, but the petitioners claim that the entry level pay scale for the post of Junior Typist is at par with that of Junior Assistant in various ORSP Rules. In spite of this fact of pay parity and the recommendation of CPC, the post of Typist in the Orissa High Court was neither merged with Assistant nor was treated at par with the promotional post of Assistant and the promotional post of Typist has been fixed at lower scale at par with the Clerks.
2.3 According to the petitioners, Paragraph 55.65 to 55.70 of the 5th CPC Report deals with various Electronic Data Processing staff, DEOs from Grade A to Grade E and Data Processing Assistant with different pay scale and qualification and there is difference between Non-graduate DEOs and Graduate DEOs and they are fitted in DEO Grade-A & B respectively as entry grade with various promotional W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 5 of 28 avenues and the recommended recruitment qualification for this post is 10+2 with 8000 key depressions per hour as data entry work with pay scale of Rs.1320-2040 in case of ordinary matriculates, but the pay scale of Rs.1150-1500 presently available to DEOs Grade 'A' was also proposed to be abolished in the general pay structure, but in some organization, the pay scale of DEOs Grade 'B' is equivalent to the initial pay scale of Data Entry Operators, and the requisite qualification for the post of DEOs Grade 'B' in some organization is graduation + Aptitude Test or Diploma/ Certificate in Computer Application/ Programming with Speed of 8000 depressions per hour.
2.4 It is also stated by the petitioners in these writ petitions that in the year 1998, the State Government created and implemented the entry level pay scale of DEO (DEO-Grade-A) in Orissa Secretariat designated as Data Processing Assistant (Junior Grade) (In short the "DPA") in the scale of pay of Rs. 4000-6000, which was Senior Grade Typist's Scale as W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 6 of 28 per ORSP Rules, 1998 and, accordingly, 29 posts of DPA (Jr.Gr) were created on the ground that 8 nos. of Junior Assistants and 8 nos. of Junior Grade Typist posts were lying vacant and the subsequent vacancies in these posts should not be filled up, which amounts to abolition of those posts of Junior Assistants and Junior Grade Typists on creation of DPA (Jr.Gr). Thus, the post of DPA (Junior Grade) is equivalent to the post in the cadre of Junior Typist/Junior Assistant. In terms of Office Order dated 13.05.2015, the post of DPA (Junior Grade) in the State Secretariat were merged with the post of Senior Data Entry Operator by allowing RACP in their pay scale of Rs. 5200-20200 with grade pay of Rs. 2800 to Ex-DPA on completion of 10 years of continuous service. Hence, according to the petitioners, the entry level post of DPA (Junior Grade) was equivalent to the post in the cadre of Data Entry Operator (Grade-A) and the petitioners were similarly placed as DPA(Junior Grade) at the time of their appointment and were thereby entitled to the same W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 7 of 28 scale of pay of DPA at the time of their initial appointment. Further, in terms of earlier circular, the employees of Orissa High Court are at par with their counterparts in Orissa State Secretariat, but in Orissa High Court, there were separate cadres of typist, but in the year 1999, the post of Data Entry Operator (DEO) was created with pay scale of Rs. 3050-4590 as per ORSP Rules, 1998 and thereafter, in the year 2003, on approval by the Chief Justice, High Court of Orissa, the cadre of Junior Grade Typist and DEO were merged into a single cadre and designated as Junior Grade Typist/DEO, which is how the Government created Junior Grade Typist/DEO posts in the High Court's establishment.
2.5. According to the petitioners, the process and mode of recruitment and eligibility conditions for the post of Junior Grade Typist/Data Entry Operator were same as that of DPA (Junior Grade) and the duties, nature of job and responsibilities assigned to both the posts were also same, but the petitioners are being differently treated with grant of lower scale W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 8 of 28 of pay as compared to DPA which is not only arbitrary, but also discriminatory and statutory violation of Articles 14 and 16 of the Constitution of India. Finding no alternative, the petitioners made a representation to the Chief Justice, High Court of Orissa, but such representation was ultimately came to be rejected vide order dated 20.09.2017 of Special Officer(Special Cell) for want of posts in particular name which according to the petitioners is arbitrary and misconceived. Further, the Government of Orissa in their resolution dated 30.09.2008 had merged the cadre of Junior Assistant and Senior Assistant to one cadre with designation as Assistant Section Officer (ASO), but the qualification necessary to entry into service to the post of Junior Assistant and Junior Grade Typist/DEO were the same with little more higher qualification is prescribed for Junior Grade Typist/DEO, since the qualification in respect of Junior Grade Typist/DEO is Graduate with Diploma in Computer application, whereas the qualification for the post of Junior Assistant was mere knowledge in W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 9 of 28 Computer Application with graduation and thereby, the petitioners being initial appointed as Junior Grade Typist/DEO have legitimate right to claim the scale of pay enjoyed by the ASO. On the above averments, the petitioners have filed these two writ petitions for the relief stated (supra). However, in one of the writ, the petitioners have relied upon the judgments in (i) Bibhuti Bhusan Mohapatra and others Vrs. State of Orissa and others; (1994) II OLR 79 & (ii) State of Orissa and another Vrs. Bibhuti Bhusan Mishra; Civil Appeal No. 5074 of 2004 disposed of on 07.04.2011.
3. In response to the notice of the writ petitions, the opposite party no.2, the High Court of Orissa being represented by the Registrar (Judicial) has filed its counter affidavits in both the writs through Special Officer (Special Cell) by inter-alia stating that consequent upon the representation of the employees vide Annexure-10 to the writ petitions with regard to revision of pay scale and merger of Jr. Grade Typist/DEO with the post of Sr. Typist as "DPA" in the W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 10 of 28 Establishment of High Court, the matter was referred to Government of Orissa in Home Department for clarification and accordingly, the Deputy Secretary to Government of Orissa in Home Department was requested to furnish information as to whether any post of DPA in the cadre of Typist/DEO is in existence in the Government of Orissa and if so, to furnish the details of Rule, pay scale and conditions of service thereof, but in response to such clarification, the under Secretary to Government of Orissa in Home Department replied about non-existence of DPA Post in the State Secretariat by furnishing his views in Annexure-A/2. 3.1 It is also stated in the counter affidavits that there was a separate cadre of typist in Orissa High Court, but in the year 1999, three posts of DEOs were created for Computer Centre of Orissa High Court along with other posts, however, as the three numbers of post were non-caderized posts, all those posts have been brought under the cadre of typist which were filled up along with recently created posts of Jr. Grade Typist by persons having +2 qualification W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 11 of 28 with knowledge in Data Entry Operation, keeping the prevailing mode of recruitment and the persons so recruited were being designated as typist/DEO to facilitate their future promotion to the cadre of Sr. Grade Typist and the promotional post of Sr. Grade Typist is on the same scale of pay equivalent to that of the employees in the State Secretariat. 3.2 Be it noted, OP No. 1 has filed separate counter affidavits in both the writ petitions taking the same stand of OP No.2 in essence by inter-alia stating additionally in the counter affidavits that the post of Jr. Typist/DEO and the post of Jr. Assistant belong to separate cadre having separate duties and responsibilities and thereby, the petitioners' claim to be treated at par with Assistant Section Officer (ASO) which is the post created after merger of Jr. Assistant and Sr. Assistant, is untenable and unacceptable.
4. This Court, however, has heard Mr. S.B. Mohanty, learned counsel for the petitioners in W.P.(C) No. 2222 of 2018 and Mr. M. Kanungo, learned Senior Advocate appearing along with Mr. W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 12 of 28 S.R. Mohanty, learned counsel for the petitioners and Mr. G.N. Rout, learned Additional Standing Counsel. In the course of hearing, learned counsels for the petitioners in both the writs while arguing in the matter have reiterated the facts stated in the writ petitions and relied upon some decisions in support of the claim of the petitioners for equalization of pay with their counterparts in the State Secretariat. 4.1 As against the submission advanced for the petitioners, the learned ASC by referring to the absence of the post in the cadre of DPA as stated under Annexure-A/2 to the counter affidavit of OP No.2 has prayed to dismiss the writ petitions by contending inter-alia that the claim of the petitioners for equalization of pay with their counterparts in the State Secretariat merits no consideration.
5. After having considered the rival submissions upon perusal of the record including the counter affidavits, rejoinder to counter affidavits and reply to rejoinders, it appears that the petitioners seek for the main relief of equalization of pay by W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 13 of 28 claiming that the duties and responsibilities entrusted to the post of Data Processing Assistant are same with their initial appointment to the post of Jr. Grade Typist/Data Entry Operator. In addition to the above relief, the petitioners' further claim is for the pay enjoyed by ASO only on the ground that the post of Jr. Assistant and Sr. Assistant were merged by Government of Orissa Resolution dated 30.09.2008 and re-designated as the post of ASO, but the qualification necessary to entry into Jr. Assistant and Jr. Grade Typist/DEO were basically the same with little more higher technical qualification prescribed for Jr. Grade Typist/DEO with equal education qualification of Graduation. Addressing this claim of the petitioners for pay equivalent to that of ASO, this Court considers it apt to remind that the mode and manner of selection of Jr. Assistant was not the same for the post of Jr. Gr. Typist/DEO and it can never be disputed that the post of ASO is a separate cadre post and the duties and responsibilities as entrusted to the post of ASO are also different to that of the W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 14 of 28 post of DEO/Jr. Gr. Typist. It is, however, not in dispute that the post of Jr. Assistant and Sr. Assistant were merged and re-designated as ASO. On wholesome reading of the claim of the petitioners in the writ petitions, this Court, however, finds a feeble attempt made by the petitioners for claiming equalization of pay with that of the post of ASO, but the main relief sought for by the petitioners is however, for equalization of pay with that of the post of DPA. Hence, such claim of the petitioners needs to be addressed in proper prospective and are accordingly dealt with hereinafter.
6. In addressing the claim of the petitioners for equalization of pay with that of the post of Data Processing Assistant, it appears that some of the petitioners have made a representation to the Chief Justice, High Court of Orissa which came to be rejected on the basis of the letter under Annexure- A/2 to the counter affidavits, wherein it is inter-alia stated by the under Secretary to Government in Home Department that there were no Data W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 15 of 28 Processing Assistant Posts in the State Secretariat at that time of giving reply on 30.03.2017. Further, it is forthcoming from Annexure-12 to the writ petitions that the employees of Orissa High Court are at par with that of Secretariat, but due to non-existence of posts of Data Processing Assistant in the Secretariat, there is no scope for representation of the petitioners for revision of pay scale and merger of the posts of Junior Grade Typist/DEO with Senior Grade Typist as Data Processing Assistant. There is no dispute that Junior Grade Typist/DEO of Orissa High Court were initially appointed following the Rules, 1963 which came to be modified and amended from time to time, but the petitioners were admittedly appointed in different phases in the year 2004, 2012 and 2015 respectively and what cannot be lost sight of is that the eligibility criteria for appointment to the posts (Junior Grade Typist/DEO) was +2 in any discipline with knowledge in Data Entry Operations with minimum speed of 40 WPM in typing earlier i.e. before amendment of the Rules,1963, but after W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 16 of 28 amendment to the Rules, the eligibility criteria has been enhanced to Graduation in any discipline with other qualifications as it is. It is, therefore, clear that those petitioners who have been appointed prior to the Rules, 2012 had qualified to the posts with minimum eligibility qualification of +2, whereas those who have been appointed after the amended Rules, 2012 requires minimum eligibility qualification of Graduation. It is not out of place to mention here that the recruitment process of DEO of the State Secretariat is different to that of recruitment process of Junior Grade Typist/ DEO of Orissa High Court, since the appointment of DEOs in the State Secretariat are governed by the Orissa Secretariat Data Entry Operator (Method of Recruitment and Conditions of Service) Rules, 2008 (In short the "Rules, 2008"). Moreover, the Junior Grade Typists and DEOs consisting of Junior DEOs and Senior DEOs are placed in separate cadre in the Rules, 2008 and the appointment to the posts of Junior Grade Typists in State Secretariat is governed by the Orissa W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 17 of 28 Secretariat Typists (Method of Recruitments and Conditions of Service) Rules, 2008 (In short the "Typist Rules, 2008"). Further, it is stated in the counter affidavits attached to WPC No. 32223 of 2020 that the Junior Grade Typists/ Data Entry Operators posts in Orissa High Court carry the same scale of pay as that of Junior Grade Typists and DEOs in the State Secretariat, which has not been denied by the petitioners. Besides, it cannot be denied that the Junior Grade Typists/DEOs of the High Court of Orissa have the promotional avenues; such as Senior Grade Typists, Superintendent of Typist level-II and Superintendent of Typists Level-I. Since the post of Data Processing Assistant has admittedly been abolished in the year 2015, it can be considered that the post of DPA was in fact created for a specific period till its merger with Data Entry Operator Cadre as Senior DEOs in terms of the resolution of the Government under Annexure-7 series to the writ petitions.
W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 18 of 28
07. What cannot be overlooked is that Annexure-7 series discloses that 18 persons working on daily wages basis in the Computer Wing of Finance Department had been absorbed against the temporary post of DPA(Junior Grade) vide Office Order No. 42196 dated 26.09.1998, but their absorption to the temporary post of DPA was not governed by any Rules and that too, against the temporary post of DPA(Junior Grade). It is never disputed by the petitioners that their appointments to the post of DEOs were in the years of 2004, 2012 and 2015 in terms of Rules, 1963 and Amendment Rules thereafter. It is worthwhile to remind that in the year 1999, three posts of Data Entry Operators were created in High Court of Orissa along with other posts in terms of Annexure-9, but then the post of DEO was non-caderized post. In this situation, when the temporary posts of DPA were created in the year 1998 in the State Secretariat, but the non-caderized post of DEO having introduced in the High Court of Orissa in the year 1999 and the petitioners having W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 19 of 28 appointed as Junior Grade Typist/DEO in the year 2004,2012 and 2015, how come they can claim for equalization of pay against a temporary post which was created prior to their appointments and subsequently merged way before in time of their claim in the writ petitions and that too, against a non-existing post.
08. It is also not in dispute that Typists and DEOs are separate cadre posts in State Secretariat and their mode and method of selection are also governed by different rules, but Junior Grade Typists/DEOs are appointed in terms of the combined Rule of the High Court and the mode and method of selection of Junior Grade Typists/DEOs is one and same in the High Court of Orissa. Further, all the petitioners were not appointed as DEOs at the same time, but the minimum eligibility qualification to the initial posts of appointment of the petitioners were different since the prescribed eligibility qualification was +2 and Graduation in any discipline before or after amendment of Rules respectively and therefore, W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 20 of 28 the aforesaid ground is not favouring the petitioners for their claim of equalization of pay. It is, however, claimed that Junior Grade Typists and Junior Assistants in the State Secretariat are equivalent cadre of the post of Data Processing Assistants (Junior Grade), but merely because Junior Assistant and Junior Grade Typists were directed not to be filled up on creation of post of Data Processing Assistants as stated in the writ petitions, it would not ipso facto be said that Junior Typists/Junior Assistant Posts are equivalent to the post of DPA, especially when the duties and responsibilities of the above posts are not only clarified and defined, but also distinct and separate. It is also important to note that no recruitment Rules or duties and responsibilities attached to the post of DPA are brought to the knowledge of this Court, while claiming equalization of pay of the petitioners with that posts.
09. The cardinal principle that a Government has to follow is the Rule of Law in the matters of conditions of service of employees and when there is W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 21 of 28 allegations for creating distinctions between the employees in the same cadre, which if established, would tantamount to violation of Article 14 of the Constitution of India which broadly speaks about the Fundamental Right of equality before Law. The "doctrine of equality" is a dynamic and evolving concept having different dimensions, but Articles-14 to 18 of the Constitution of India assure equality before Law and equal protection of the Laws and also disallow the discrimination which lacks the object of achieving equality in the matters of employment. In the present case, the "doctrine of equalization" of pay has it roots in the concept of "equal pay for equal work" which is the essence of equality before law, but before claiming the benefit of aforesaid doctrine, the concerned employee has to establish that the qualification, eligibility criteria, mode of selection/ recruitment, nature and quality of work, duties and responsibilities, reliability, confidentiality, dexterity, functional need and the status of both the posts are identical. In addition, the application of doctrine of W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 22 of 28 equality arises when the employees are equal in every aspect yet, they are denied equality in pay, but if the classification for prescribing different scales of pay is founded on reasonable nexus with the object of differentiation, the principle will not apply. Further, the Court can negate the claim for equalization of pay, even the persons in the cadre are doing similar work or same work, but they are classified on the measure of responsibilities, educational qualifications, experience and other related matters. However, the discrimination is practised between two sets of employees performing the same duties and functions without there being any rational justification, it can be well considered to be in violation of Articles 14 and 16 of the Constitution of India.
10. Evaluating the case of the petitioners in the backdrop of aforesaid principles, this Court at the inception does not find any recruitment rules prescribed for appointment of DPA which was in fact created on temporary basis in terms of Annexure-7 series on 26.09.1998, but the petitioners were W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 23 of 28 appointed on the basis on statutory rules. Further, the post of DPA did not exist at the time of claim of the petitioners, no matter it was existed earlier. The entire averments made in the writ petitions do not disclose the duties, responsibilities, the nature and quality of work, reliability, confidentiality, functional need and status of both the posts to be identical. Further, there were separate posts of Typists and DEOs in State Secretariat, whereas one common cadre post of Junior Typist/DEO is in existence in the High Court of Orissa. Moreover, the qualification prescribed for the post of Junior Typists /DEOs at the time of initial appointment of some of the petitioners were different with that of the petitioners appointed after the Amendment of Rules. What were the eligibility criteria for DPA, are never revealed in the averments in the writ petitions. Last but not the least, the post of DPA was for temporary in nature as revealed from Annexure-7 series. Hence, it is inappropriate to consider the entitlement of the petitioners for equalization of pay with a non- W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 24 of 28 existence post and which was created for a temporary period.
11. The petitioners, however, has relied upon the judgment dated 21.11.2013 passed by this Court in W.P.(C) No. 6464 of 2013, but the said judgment is not applicable to the present case, since the dispute therein was with respect to actual financial benefit calculated notionally w.e.f. 30.09.2008, but the present case relates to claim for equalization of pay of the petitioners with that of a non-existing posts. Further, in the above relied upon judgment, the Government of Orissa in the Home Department has passed resolution to merge the post of Junior Assistant and Senior Assistant as Assistant Section Office which is not the case at hand. Besides, the petitioners have also relied upon the decision in Bibhuti Bhusan Mishra(supra), but the dispute therein essentially with regard to claim for up- gradation of the writ petitioner to the post of Superintendent Level-I with his counterparts in the State Secretariat, but the same dispute is not here. W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 25 of 28 However, it is to be reminded that in the aforesaid decision, this Court has taken note of the Rule-7 of the Rules, 1963 which provides for in respect of matters regarding the conditions of service of Court employees for which no provision or insufficient provision has been made in the Rules and in such event, the rules and orders for time being in force and applicable to the servants holding corresponding posts in the State Government shall regulate the conditions of service of Court employees subject to such modification/variation and exception if any. The upshot of the discussion is that wherever the rules are either silent or are insufficient in respect of any matter relating to the condition of service of an employee of High Court, he is to be ipso facto governed in respect of that aspect of conditions of service by corresponding rules and orders that relate to Government Servant holding corresponding post in Government.
12. The petitioners also rely upon the decision in Bibhuti Bhusan Mohapatra(supra), but W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 26 of 28 again the same is not applicable to the case in hand inasmuch as the private Secretaries of Judges of Orissa High Court had claimed relief of retrospective operation of resolution of Home Department dated 27.07.1991 granting them Class-II Gazetted status. Further, the petitioners have also relied upon the decision in the case of (i) State of Punjab and others Vrs. Senior Vocational Staff; (2017) II OLR SC 503 and (ii) Samarendra Nayak and others Vrs. Union of India and others; (2022) II OLR 21. These decisions are, however, considered respectfully, but found distinguishable from the facts of the present case. The petitioners have further relied upon the decision in the State of Andhra Pradesh and another Vrs. Smt. Dinavahi Lakshmi Kameswari; (2021) I ILR CUT 481, but again the same is found distinguishable from the facts of the present case inasmuch as the delayed or deferred payment of salary was in issue in the relied on case which is not the same in this present case. W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 27 of 28
13. From analysis of the facts involved in the writ petitions and applying the principle of Law as well as the doctrine of "equal pay for equal work", this Court, however, does not find any acceptable reasoning to extend the relief of equalization of pay to the petitioners against the pay attached to non- existence post and, thereby, the refusal of the representation of the petitioners by High Court of Orissa in this situation appears to be not contrary to law or any principle and the claim of the petitioners in both the writ petitions merit no consideration.
14. In the result, both the writ petitions deserve no consideration and are accordingly dismissed on contest, but in the circumstance, there is no order as to costs.
(G. Satapathy) Judge D.Dash, J. I Agree (D.Dash) Signature Not Verified Judge Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OFOrissa ORISSA High Court, Cuttack, Date: 15-May-2024 20:03:07 Dated the 13th day of May, 2024/Priyajit W.P.(C) Nos.2222 of 2018 & 32223 of 2020 Page 28 of 28